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Madhya Pradesh High Court · body

2020 DIGILAW 1208 (MP)

Dinesh Bhargava v. Sheetal Rathore

2020-11-09

G.S.AHLUWALIA

body2020
ORDER 1. This Miscellaneous Petition under Article 227 of the Constitution of India has been filed against the order dated 18.9.2020 passed by Second Civil Judge, Class-II, Guna in Civil Suit No. 157-A/2020, by which the application filed by the petitioner under Order 1 rule 10 of CPC has been rejected. 2. It is the case of the petitioner that the complainant / respondent No. 1 has filed a suit for declaration of title and permanent injunction against the respondents No. 2 and 3 with respect of a strip of land adjoining to his house. The application under Order 1 rule 10 of CPC was filed by the petitioner seeking his impleadment as defendant on the ground that in fact, the respondent No. 1 is raising construction over a strip of land, which is a public road and because of the construction of the respondent No. 1, his access to his house has been obstructed. Reply was filed by the respondent No. 1 and the trial Court by the impugned order dated 18.9.2020 has rejected the application. 3. Challenging the order passed by the Court below, it is submitted by the counsel for the petitioner that there is a strip of three feet of land, which is adjoining to the house of the respondent No. 1. The said strip of land is being used by the petitioner for having access to his house. Now the respondent No. 1 is raising the construction over the said strip of land, as a result of which, his access to his house has been obstructed. Accordingly, he had made a complaint to the respondent No. 3 and only on the complaint of the petitioner, action was being taken by the respondents No. 2 and 3 against the petitioner and, therefore, not only the petitioner is the complainant of the illegal construction, which is being raised by the respondent No. 1, but his personal right of access to his house has also been infringed by the respondent No. 1, therefore, he was a necessary party. 4. Per contra, it is submitted by the counsel for the respondent No. 1 that it is incorrect to say that strip of three feet of land is the only way to the house of the petitioner. 4. Per contra, it is submitted by the counsel for the respondent No. 1 that it is incorrect to say that strip of three feet of land is the only way to the house of the petitioner. It is submitted that in fact, plate-form of the respondent No. 1 was already constructed over this piece of land and it is clear from the spot punchnama prepared by the SDO, Guna that a road ad-measuring 2.8 feet is situated on the eastern and western side of the house of the petitioner as well as public roads are situated on the northern and southern side of the house of the petitioner. It is further submitted that according to the petitioner, the land in question belongs to respondent No. 3, under these circumstances, the petitioner is a complete stranger to the lis between the respondent No. 1 and respondent No. 3 and if the petitioner is of the view that his easementary right is being violated, then he has a remedy of approaching the civil Court for declaration of his right. It is further submitted that addition of party resulting into triangular fight cannot be permitted and relied upon the order passed by Coordinate Bench of this Court in the case of Nandlal and others v. State of MP and another reported in 2014 (II) MPWN 64 . It is further submitted that it is a simple case of declaration of title against the respondent No 3. Whether the petitioner has any right against the respondent No. 1 or respondent No. 3 are not germane to the present proceedings and, therefore, the right of the petitioner cannot be decided in the said proceedings. 5. Heard the learned counsel for the parties. 6. A coordinate Bench of this Court in the case of Nandlal (supra), has held as under:- “9. A perusal of the impugned order reveals that the trial Court while passing the impugned order has not considered the issue of triangular fight which was specifically raised by the petitioner before the trial Court. This Court also in the matter of Akshaya Kumar Jain v. Mahendra Kumar Jain reported in 1992(1)MPWN 309 has taken a view that addition of party resulting into triangular fight cannot be allowed. The trial Court while passing the impugned order has also not considered the basic concept of the plaintiff being dominus litus.” 7. This Court also in the matter of Akshaya Kumar Jain v. Mahendra Kumar Jain reported in 1992(1)MPWN 309 has taken a view that addition of party resulting into triangular fight cannot be allowed. The trial Court while passing the impugned order has also not considered the basic concept of the plaintiff being dominus litus.” 7. The Supreme Court in the case of J.J. Lal Pvt. Ltd. and others v. M.R. Murali and another reported in (2002) 3 SCC 98 has held as under :- “28. Both the sets of applications raise such controversies as are beyond the scope of these proceedings. This is a simple landlord-tenant suit. The relationship of the Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between Hemlata Mohan and the respondents cannot be decided in these proceedings. The impleadment of any of the two applicants would change the complexion of litigation and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor is their presence necessary to enable the Court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein. Each of the two applicants is free to establish its own claims and title, whatever it may be, in any independent proceedings before a competent forum. The applications for impleadment are dismissed.” 8. If the contention of the petitioner is considered, then his case is that, action was taken by the respondent No. 3 on his complaint and he has an easementary right to use a strip of land of three feet. According to the petitioner, the land in question belongs to the respondent No. 3. It is for the plaintiff to decide, against whom he wants to file a suit. If the petitioner is permitted to implead, then it would result in triangular fight between the petitioner, respondent No. 1 as well as respondent No. 3. 9. Under these circumstances, this Court is of the considered opinion that the trial Court did not commit any mistake by rejecting the application filed by the petitioner. If the petitioner is permitted to implead, then it would result in triangular fight between the petitioner, respondent No. 1 as well as respondent No. 3. 9. Under these circumstances, this Court is of the considered opinion that the trial Court did not commit any mistake by rejecting the application filed by the petitioner. Accordingly, the order 18.9.2020 passed by Second Civil Judge, Class-II, Guna in Civil Suit No. 157-A/2020 is hereby affirmed as no jurisdictional error could be pointed out by the counsel for the petitioner. 10. The petition fails and is hereby dismissed. Amit Lahoti for petitioner; Rishikesh Bohare for responent No.1; Abhishek Mishra, for respondent No.2/State; D.S. Raghuvanshi for respondent No.3.